Judicial appointments 'work'

There is no reason to change the way in which members of the judiciary are appointed, Parliamentary Secretary in the Justice Ministry Carm Mifsud Bonnici believes.

Chief Justice Vincent DeGaetano recently said during an interview with The Times that he would prefer a Judicial Appointments Board to vet candidates and draw up a shortlist in order of preference. If the preferred candidate were not chosen, then the person overruling the decision would have to say why publicly, he suggested. He argued that this would introduce more accountability should the wrong person be chosen.

However, interviewed for his reaction, Dr Mifsud Bonnici said he believed the present system had worked in the past and was still working.

"Whenever someone is appointed as a judge, a speech is made explaining the merits of the person. It would be politically irresponsible to appoint someone of bad character, who has no knowledge of the law or who has a bad reputation with clients. But once they are appointed, you cannot remain responsible for what they subsequently do.

"I challenge anyone to say that in the appointment of any of the judges and magistrates, the executive - whichever one - acted in a manner that was irresponsible or which did not take into consideration the need to have these basic essentials."

What about the aspect of accountability: Were there no wrong choices in the past? And who was held accountable for them?

He admitted that there were problems, but insisted: "When these persons were appointed, the executive acted in the best of good faith."

He was against the idea of adopting a model that works elsewhere, for example in the UK, pointing out that the context is different.

"That model works in a very different system, where you have a school for judges, magistrates and public prosecutors. They undergo a three-year preparation course, specialising in certain fields.

They are then sent to courts where their judgments are evaluated for performance and time management skills and their behaviour is assessed. Only then are they recommended for a position. This is obviously not the case here."

He was also very concerned about the potential impact of public scrutiny of candidates.

"I am afraid that a Judicial Appointments Board would have a contrary effect to what the Chief Justice wants. It would be a further obstacle.

"We are a very small community and whichever person you want to appoint, there will be someone who objects. The Chief Justice is proposing that the Prime Minister would have to explain publicly why he or she decided not to follow the recommendations.

"Imagine if I were a lawyer on the list recommended by the board and the Prime Minister must then say in Parliament why he did not choose me. Would it be in my interest to accept to be on that list?

"It is already difficult to persuade valid people to join the judiciary. I approached someone who said that they would only consider the nomination if there were no public vetting. One lawyer who was nominated told me that within 24 hours of his name being mentioned all his major clients had been approached by rival lawyers. He subsequently declined the post.

"The other problem is that you expose the identity of potential candidates. We have people who might not be prepared to become judges or magistrates today but who might consider it in five or six years' time. There are many reasons for this.

"There is the loss of income but often the overriding factor is the change in lifestyle as you are expected to behave in a different manner. You are segregated from society and you have to be on your guard. This is quite a different world."

Dr Mifsud Bonnici also disagrees with the Chief Justice's proposal that the court administration should be run by an independent agency, which would in turn report to the Chief Justice or the commission. He admits, however, that he had originally been of the same mind but subsequently opted for a director general who reports to the justice minister.

"When I became parliamentary secretary, it was one of the first things I planned to do. However, during my three years here, I have changed my opinion. This was for a number of reasons.

"My experience in these years is that the system has worked, something that was acknowledged by the Chief Justice during the traditional October 1 speech. I was often present as a lawyer for these speeches and until this year I had never heard the Chief Justice praise either the director general or a civil servant.

"The director general and staff in the courts are working -  maybe not perfectly - but in a far better atmosphere than ever before. The system has worked not only because the Chief Justice and the director-general have hit it off but because both of them respect their separate spheres of action. When there is something that involves the judiciary, the director general consults - and invariably acts on the advice and even the decisions - of the Chief Justice. However, the Chief Justice backs off when it comes to court problems."

The Chief Justice had not wanted a system that relied so heavily on the goodwill of the persons involved, but Dr Mifsud Bonnici said that in the end, whichever system was put in place, it was always down to personalities.

"If you have an independent agency, you are not solving anything. Who would give it direction? You have to bear in mind that the judiciary has its own priorities and these may not be the same ones as those of the public it serves. What direction would the head of an independent agency have? Would he have his own agenda?"

He was rather peeved at the fact that the administration was blamed for so many things.

"If you hear the first of October speeches, you would think no one was responsible except for the administration or the executive. The lawyers have no responsibility, the legal procurators have no responsibility, judges and magistrates have no responsibility. Invariably, the responsibility is always placed on the shoulders of the administration."

He said that the complaint always boiled down to one: That there is not enough staff.

"If someone could convince me that by adding more people I would get more judgments or that cases would be decided faster, then I would be all for it. But the backlog does not depend on the court administration. It depends on how the cases are conducted.

"If a judge decides to thrash out a case, it is concluded quite fast. The truth is that if the judge takes the bull by the horns and says, look, lawyer A and B, don't tell me the whole story... I am not interested. I need evidence on points C, D and E and I want this evidence today. If you cannot bring it today, then I will give you another week, not 18 months.

"All the judges have a good team, with a good deputy registrar, a good judicial assistant and either a messenger and an usher or both. These four people are more than enough. Each judge or magistrate already costs the state Lm100,000 a year.

"In other countries, each judge is given an annual budget to spend on their court as they wish. Would a judge be willing to accept a budget, to spend it well, to discipline their people, to be on time, to perform well? I don't think so."

There are some aspects where improvements are needed, one of which is court experts. Dr Mifsud Bonnici said the ministry has embarked on a new legal scenario.

"We have issued a call for translators, with appointees to be approved by the Chief Justice. The persons who do not perform will be cut off from the list. It will be as simple as that. We are starting with the translators but will eventually apply the same principle to all the various types of court experts.

"And the good thing is that it will be the judiciary itself which raises the alarm when an expert is not performing or, even worse, when they have performed badly."

However, in the end it all comes back to the judiciary. One of the problems is discipline: The Chief Justice lamented that when it comes to the judiciary, it is all or nothing.

Dr Mifsud Bonnici believes the problem is that there is no sense of teamwork.

"It is not a solo show. It is teamwork. There is no collegiality. That culture has not yet been inculcated: Each judge or magistrate looks at his or her turf.

"And there is no internal mechanism whereby something can be done if someone is not performing, say because of health or personal problems or because of a lack of motivation or energy. We do not have a system whereby a judge can be suspended, reprimanded or publicly held to task.

"I would be very hesitant about such an approach. It is not necessarily the right approach to discipline. But the judiciary must understand that it is there to serve the public. The judiciary is not aware enough of public opinion. In fact, the idea in the law courts is that public opinion does not matter. But that is wrong," he said.

He believes teamwork would solve many of the problems.

"If Judge A is sick, his workload should not be left there to gather dust. Other judges should share out the workload until he returns. The people who are waiting for their case to be heard or concluded should not be left in limbo - as has been the case.

"We also need to create a better system to deal with those within the judiciary who do not respond to the calls of the other members. Let us discuss what measures we can use."

The Commission for the Administration of Justice is in charge of discipline but the Chief Justice had also pointed out in his interview that he was the first among equals, and not the head of the judiciary - which greatly affects his power.

"Both (the commission and the Chief Justice) are solutions. We are addressing the second point and giving the Chief Justice more internal power, although you have to tread with great sensitivity to ensure the support of the person in the judiciary.

"With regards to the commission, the problem is that the procedure is so pedantic. We had a case that took seven years before it went before Parliament for a vote. It was most unpleasant for everyone involved."

Dr Mifsud Bonnici admitted that the public sometimes perceived members of the judiciary as arrogant.

"The judiciary looks at the concept of independence in a strange way. It looks at it as a form of splendid isolation. Independence is a guarantee there will be no interference from the legislative or from the executive or from economic powers. But it is not a cloister. We do not have judges and magistrate locked in cells like Benedictine monks.

"They are there as part of society. This message has to get through.

"We get sidetracked. What people want is justice as fast as possible. This is the discipline I would like to see. This is the change of culture I would like to see in the judiciary. They must understand that people want a judgment to be fair but also for it to be as fast as possible."